WIXLIB

Bond Forfeitures:Nuts and BoltsTAC SPRING JUDICIAL EDUCATION CONFERENCEMARCH 2019

Road Map Typesof Bail Bonds HowBail Bonds are Forfeited HowBail Bond Forfeitures Cases are Resolved

Definition of Bail Security given by the accused that he willappear and answer before the propercourt the accusation brought against him.

Types of Bail Bonds Cash Bonds Surety Bonds Personal Bonds

Requisites of Bail Bonds Made payable to the State of Texas The defendant and sureties, if any, bindthemselves to appear before the proper courtor magistrate to answer the accusation Must state whether the charge is a felony ormisdemeanor Must be signed by name or mark with addressof the defendant and surety

Requisites of Bail Bonds Continued Bond must state the time and place, when and where thedefendant is to appear and the court or magistrate beforewhom he is to appear The Bond must also bind the defendant to appear beforeany court/magistrate where the case may thereafter bepending at any time and place where the defendant’spresence is required

“Requisites” is a loose term Failure to state the date and court where a defendant wasrequired to appear is not fatal. Scott v. State, 617 S.W.2d 691, 692(Tex. Crim. App. 1981). Defendant’s failure to write his address on the bond is not fatal.Smith v. State, 566 S.W.2d 638, 639 (Tex. Crim. App. 1978). A surety can waive insufficiencies in the bond by signing thebond without insisting the corrections be made. Balboa v.State, 612 S.W.2d 553, 555 (Tex. Crim. App. 1981); Marroquinv. State, 953 S.W.2d 829 (Tex. App.—Corpus Christi 1997).

Liability Ends When: Liability for the Defendant and the Suretyends when the Defendant Receives an order of deferred adjudication; Is acquitted; Is sentenced; Is placed on community supervision; or Has his case dismissed

Forfeiture of Bail If a Defendant is on bond and fails to appear, a judicialdeclaration of forfeiture SHALL be taken.

Suggested Court Procedureto Forfeit Bail Defendant’s name called at Docket * If Defendant does not answer, the Prosecutorshould make an oral motion for forfeiture Bailiff or clerk calls Defendant’s name in hallway orat door The Court waits a “reasonable amount of time” forDefendant to appear The Judge grants the motion for forfeiture Clerk, DA, CDA, or CA prepare judgment offorfeiture (Judgment Nisi) for the Judge’s signature

Citation Prepared by the Clerk – as other civil citations EXCEPT itmust say, “appear and show cause why the judgmentshould not be made final.” Copy of Judgment Nisi must be attached. Can be served by Sheriff, Constable, anyone over 18authorized by law or written order of court, but cannot beinterested in the outcome. Can also be served by certified mail or publication.

The Correct Defendants“Principle” is the Defendant who wasbonded out of jailPrincipal’s name must appear as it is writtenon the bondBond Martha StewartJudgment Nisi must name Martha Stewart.Acceptable to include “Martha Stewart akaMartha Stuart” in the Judgment Nisi.

The Correct Defendants Continued“Surety” is the bonding company. Individual SuretiesGenerally sole proprietorshipsEx. Michael Calvillo d/b/a Michael Calvillo Bail Bond Corporate SuretiesInsurance CompaniesEx. Financial Casualty and Surety, Inc. d/b/a Cowboy Bail Bonds

Who May be a Surety? Non-Bail Bond Board Counties Sheriff Approval Within past two years, complete 8 hours of continuinglegal education No final conviction of misdemeanor involving moralturpitude or a felonyBail Bond Board Counties License Approval and Renewal by the Bail Bond Board No final conviction of misdemeanor involving moralturpitude or a felony

How to Serve the Defendant – Principle Cash bond Defendant must be served at address onthe bond or last known address.Surety bond Noaddress on bond – no servicerequired Addresson bond – serve at that addressor last known ByRegular Mail

How to Serve Surety – Bonding Co. Citation as in all civil matters Individual or attorney surety –serve individual or attorney on bond Corporate surety –service must be had on the agentdesignated for service by the corporationpursuant to Chapter 804 of the TexasInsurance Code (CCP 22.03(c)).

The Judgment Nisi Must be filed within 4 yearsof the failure to appear Best practice – file as soonas possible

Required Elements of Judgment Nisi Must include exact date of the failure to appear Must include the correct amount of the bond Must state whether the Defendant is charged with a felonyor misdemeanor Naming the Correct Defendants

Scire Facias Docket “Scire facias” A writ requiring the person against whom itis issued to appear and show cause whysome matter of record should not beenforced, annulled, or vacated. BLACK'S LAWDICTIONARY (10th ed. 2014).The scire facias docket is a civil docket. Oncethe Judgment Nisi is filed the matter proceedsas all other civil matters. CCP 22.10.

Answer Answers are due just as in civil cases – 10:00 a.m. onthe Monday following 20 days after service. TRCP 99. Can But be a general denialmust include affirmative defensesDefault Judgment can be entered if no answer isreceived, but the return must be on file with the Clerk’sOffice for at least ten days.

Discovery CCP 22.10 states that bond forfeiture proceedingsare governed by the civil rules Discovery rules should apply as in all civil cases

Settlement Negotiations Texas Occupations Code § 1704.205and the Code of Criminal ProcedureArt. 22.125, permit the State torecommend a settlement to theCourt in an amount less than theamount stated in the bond.

Causes which will Exonerate theDefendant and the Surety Not a valid and binding bond The Death of the principle BEFORE the date of the forfeiture Sickness or uncontrollable circumstance arising from no fault of the Defendant ANDDefendant must appear before final judgment of bond forfeiture Failure to Present an indictment or information at first term of the court which maybe held after the principal has been admitted to bail, in case where the party wasbound over before indictment or information, and the prosecution has not beencontinued by order of the court The surety is entitled to remitter of the entire amount of the bond, less costs of court,interest and return costs, if Defendant is in custody at time of bond forfeiture or ifDefendant is incarcerated within a specified time frame for misdemeanor or felonyoffenses

Defenses – CCP 22.13Sickness or Uncontrollable Circumstance Sickness or “uncontrollable circumstance” and no fault of the defendant Must appear in court after forfeiture and before final judgmentReturn to Custody Within 180 days for misdemeanor Within 270 days for felony Must still pay costs of court, cost to return defendant to custody, and intereston the bond from the date of Judgment Nisi to defendant’s return to custody

Remittitur – CCP 22.16AFTER Judgment Nisi is filed, but BEFORE final judgment. Mandatory –defendant is returned to custody AND either: Re-bonded out of jail on same offense; OR Criminal case is DISMISSED (not disposed).Discretionary – defendant is returned to custody,BUT not bonded out again and case notdismissed (even if case is otherwise disposed).NOTE: Both REQUIRE the defendant is returned to custody

Calculating the Mandatory RemittiturAll of the bond must be returned to the DefendantLESS1.Costs of Court2.Costs to return the Defendant to custody; and3.Interest on the bond from date of forfeiture through finaljudgment at same rate as accrual of prejudgment interest incivil cases (currently 5.50% - www.occc.texas.gov)

Calculating the Discretionary RemittiturAll or part of the bondLESS1.Costs of Court2.Costs to return the Defendant to custody; and3.Interest on the bond from date of forfeiture throughfinal judgment at same rate as accrual ofprejudgment interest in civil cases (currently 5.50% www.occc.texas.gov)

Calculating the Discretionary RemittiturConsider the following factors: Whether the accused’s failure to appear in court was willful; Whether the delay caused by the accused’s failure to appear incourt prejudiced the State or harmed the public interest; Whether the surety participated in the re-arrest of the accused; Whether the State incurred costs or suffered inconvenience in there-arrest of the accused; Whether the surety received compensation for the risk ofexecuting the bail bond; and Whether the surety will suffer extreme hardship in the absence of aremittitur.

Bond Forfeiture Trials 4 FACT ISSUES Whether there is a valid bond Whether the Defendant’s name was called at the courthouse door Whether the Defendant failed to appear Whether the Defendant had a valid reason for not appearing 1-3 are the State’s burden 4 is the Defendant-Principle and Defendant-Surety’s burden

Notice of Trial 45 days notice required to: Defendant-Principle Defendant-Surety (If any party is represented by anattorney, then notice must be sentto the attorney, not the party) Jury trial – written request and feemust be filed no less than 30 daysbefore trial. TRCP 216

State’s Burden Standard is the preponderance of theevidence. Bond and Judgment Nisi are sufficientto meet State’s prima facia case.

Judgment Trial court may exonerate a surety fromliability ONLY as authorized by theprovisions of Chapter 22 of the CCP Clerk must send notice of judgment toall adverse parties Judgment becomes final in 30 daysunless a motion for new trial is filed

Execution Subject to execution as in civil actions. CCP 22.14 Abstract of judgment – in any county where surety owns property Writ of execution Motion for turnover Report to TDI – Commissioner of Insurance Report to Bail Bond Board (judgment must be paid from security on file - Tex.Occup. Code 1704.204) Attorney surety – if attorney also on appointment list for county, attorney is avendor. Tex. Local Gov’t Code 154.045 prevents payment to vendors whoowe debt to county or state. Defendant has to file a supersedeas bond to prevent execution, onlyavailable if on appeal.

General Bill of Review Texas Civil Practice and Remedies Code § 16.051 and TexasRule of Civil Procedure 329b(f). Fouryears to file after judgment is final Meritoriousdefense Preventedfrom making by fraud, accident or wrongful actby state Nofault or negligence on defendant/surety’s part Sworn to by actual party, not party’s attorneyState must answer and objections to the Petition must bethrough special exceptions

Special Bill of Review Unique to bond forfeiture – CCP 22.17 Available if, AND ONLY IF, the Defendant is returned to custody within2 years of final judgment. All or part of the bond MAY be remitted LESS Costs of court Cost to return the Defendant to custody Interest from the date of Judgment Nisi to final judgment AND from finaljudgment to order granting bill of review

Special Bill of Review ContinuedFactors to consider when remitting all or part of the bond: The purpose of bail is to secure the presence of the Defendant fordisposition of the criminal charges against him; A bail bond is not punitive, nor is it intended to be a substitute for a fineor revenue device to enrich the government’s coffers; The government’s cost and inconvenience in regaining custody; The delay caused by the Defendant’s breach of bond conditions; The public interest in ensuring the Defendant’s appearance; The participation of the surety in re-arresting the Defendant; and Prejudice suffered by the government.

Appeal The State has no right to appeal Civil Appellate Rules apply to appeal Court of Criminal Appeals has finaljurisdiction because bond forfeiture isa criminal matter

Surety/Attorney Off-Bond CCP 17.16 CCP 17.19

Questions?Andrew WipkeAssistant District AttorneyLubbock County Criminal District Attorneyawipke@co.lubbock.tx.us(806) 775-1112

"Requisites" is a loose term Failure to state the date and court where a defendant was required to appear is not fatal. Scott v. State, 617 S.W.2d 691, 692 (Tex. Crim. App. 1981). Defendant's failure to write his address on the bond is not fatal. Smith v. State, 566 S.W.2d 638, 639 (Tex. Crim. App. 1978).